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It's Back: WIPO Broadcasting Treaty Returns From The Grave

Longtime readers will remember the WIPO Broadcasting Treaty, which EFF has opposed since 2004 because it would harm consumers, citizen journalists, the free flow of information on the Internet, and innovation. Since 2006, EFF and a broad coalition [PDF] of public interest groups, libraries, creative industry members, telecommunications and technology companies have been explaining how granting broadcasters and cablecasters the intellectual property rights envisaged by the draft Treaty would wreak havoc on the Internet community.

After much debate and little agreement about key aspects of the Treaty, such as its objectives, specific scope, and object of protection, negotiations stalled in 2007. But it now seems to have come back from the dead in a little-noticed but highly-coordinated effort to grant broadcasters exclusive, 50-year intellectual property rights over Internet transmissions. WIPO member states agreed on June 24 [PDF] to meet for two days before the next Copyright committee meeting in November specifically to try to reach agreement on a new treaty proposal, with the goal of asking WIPO member states in 2012 to schedule an intergovernmental Diplomatic Conference at which the revised Treaty could be adopted.

The renewed interest in the Broadcasting Treaty has been spurred both by complaints from incumbent broadcasting organizations, and a campaign from the WIPO Secretariat to conclude the Treaty after more than 12 years of negotiations with no consensus. The Secretariat commissioned three studies, organized several regional seminars, and in April held an informal consultation which led to the creation of a new document with "elements" for a treaty. Meanwhile South Africa submitted a new treaty proposal of its own, and sports broadcasters have been lobbying hard for a treaty at both the April and June meetings in Geneva. All of this was aimed at kick-starting the stalled negotiations and finalizing a Broadcasting Treaty. For now, it appears to have worked.

Why should we be worried about this? Broadcasters claim that a treaty is needed to protect against signal piracy, and that the Broadcasting Treaty is simply "updating" their rights for the digital age. But what's really at stake here is something more far-reaching. This Treaty will set the legal rules that will govern the distribution of information on the Internet. The current draft Treaty would grant exclusive, 50-year intellectual property rights to distributors of information that apply in parallel with copyright protections, even when transmitters have had no role in creating the content being transmitted. Although it's not entirely clear, the new South African proposal [PDF] and the "Non-Paper" [PDF] on elements for a new treaty also seem to contemplate intellectual property rights for broadcasters and cablecasters. This move raises the same set of public policy concerns brought up by the existing draft Treaty, which threatens to stifle innovation and the creative freedom of anyone working with audio or visual content in the Internet environment.

Granting broadcasters and cablecasters intellectual property rights that apply independently of copyright in the programs being broadcast, together with legally enforceable technological protection measures, raises concerns for access to public domain works. These measures would add complexity to copyright clearance regimes for creators of podcasts and documentary films, and interfere with consumers’ ability to make home recordings permitted under national copyright laws. Granting broadcasters and cablecasters exclusive rights to authorize retransmissions of broadcasts over the Internet will harm competition and innovation by allowing broadcasters and cablecasters to control the types of devices that can receive transmissions. It will also create new liability risks for Internet intermediaries that retransmit information on the Internet.

On top of the problems posed by the current draft Treaty, there’s now a move to expand the scope of the Treaty to webcasting. The recent South African proposal [PDF] and the new Non-Paper [PDF] both advocate the need to account for "technological developments" and propose a "technology-neutral" approach. This sounds innocuous, but should be understood in the context of the history of the WIPO negotiations. "Technology-neutral" is code for extending new rights to transmissions via the Internet. This is a brazen effort to re-open a long-standing agreement that the Treaty would only give rights to "traditional" broadcasters and cablecasters. Many countries objected to expanding the Treaty to Internet broadcasters because of the harm it could cause to other Internet communications. This move is also inconsistent with the 2007 mandate given by the WIPO General Assembly—to finalize a treaty for broadcasting "in the traditional sense."

The key issue here is the scope of the treaty. Broadcasters claim that they need a new treaty to deal with "signal piracy." No one disputes that signal piracy is a serious issue that needs to be addressed. The disagreement is how to address this problem in a way that does not cause significant harm to citizens’ freedom of expression, and all the other stakeholders in the Internet economy. No empirical evidence has been presented that demonstrates what exact harm is not already being addressed by the existing copyright regime and remedies in national laws, and why broadcasters need intellectual property rights to deal with signal theft.

We continue to believe the preferable model for addressing these issues is the narrower signal-based approach in the Brussels Satellite Convention. But broadcasters continue to push for intellectual property rights that would overlap with copyright. This would trigger unintended consequences for freedom of expression and stakeholders in the Internet economy at a time when the future of broadcasting is already unclear.

Giving broadcasters an unprecedented set of legal privileges is a sure-fire way to damage speech and innovation on the global Internet. If "signal piracy" is the concern, then a narrow, signal-focused approach is what is called for, not a global replication of the existing copyright regime.